🇧🇩 Everything about our constitution

[Saif]

HC questions 15th amendment that scrapped caretaker govt system
Staff Correspondent 19 August, 2024, 13:05

The High Court on Monday asked the government to explain in 10 days why the 15th amendment to the constitution, scrapping the caretaker government system in 2011, would not be declared illegal.

The court also asked the government to explain why all the government’s actions taken on the basis of the 15th amendment would not be declared illegal.

The court asked the secretaries of the law ministry and Jatiya Sangsad’s secretariat to explain the rule in 10 days.

The bench of Justice Naima Haider and Justice Sashanka Shekhar Sarkar issued the rule after hearing a writ petition filed on Sunday by five eminent citizens challenging the legality of the amendment made by the government of deposed prime minister Sheikh Hasina.

The citizens are Sushashoner Jonno Nagorik president M Hafizuddin Khan, its secretary Badiul Alam Majumder, local government expert Tofail Ahmed, and two individuals, Md Jobirul Hoque and Zahrah Rahman.

The court heard attorney general Md Asaduzzaman before issuing the rule.

The citizens’ lawyer, Sharif Bhuiyan, argued that the parliament scrapped the national election-time non-governmental caretaker system through the 15th amendment in violation of the Appellate Division’s May 10, 2011, short order that observed that the elections of the 10th and 11th parliaments could be held under the caretaker government system.

The lawyer argued that the caretaker government system was abolished on the recommendations of deposed prime minister Sheikh Hasina, although a 15-member special parliamentary committee and all civil citizens opined for the retention of the caretaker government system.

As the 15th amendment was unconstitutional, the incorporation of new Articles 7A and 7B into the constitution was illegal, he argued.


Article 7A. (1) says, ‘If any person, by show of force or use of force or by any other un-constitutional means-

(a) abrogates, repeals or suspends or attempts or conspires to abrogate, repeal or suspend this Constitution or any of its article ; or

(b) subverts or attempts or conspires to subvert the confidence, belief or reliance of the citizens to this Constitution or any of its article, his such act shall be sedition and such person shall be guilty of sedition.

(2) If any person,

(a) abets or instigates any act mentioned in clause (1); or (b) approves, condones, supports or ratifies such act, his such act shall also be the same offence.

(3) Any person alleged to have committed the offence mentioned in this article shall be sentenced with the highest punishment prescribed for other offences by the existing laws.

On Sunday, Supreme Court lawyer Muzahidul Islam filed a case against former chief justice ABM Khairul Haque for illegally changing the verdict on the caretaker government provision.​

The lawyer in the case alleged that Khairul, in his written verdict on September 16, 2012, after his retirement, changed the original verdict, stating that the caretaker government could only be formed with elected lawmakers.

The case said that Justice Khairul, in the changed verdict, also observed that the parliament would be dissolved 42 days before the national election and a small cabinet might be formed to carry out routine work until a new cabinet assumed office.

 

[Saif]

The reason we need a new constitution

The debate regarding a new constitution for Bangladesh has now reached mainstream politics.

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The reason we need a new constitution

Visual: Fatima Jahan Ena

The debate regarding a new constitution for Bangladesh has now reached mainstream politics. Responding to the discourse, the interim government has recently formed a nine-member commission for constitutional reform. In my opinion, adopting a new constitution for Bangladesh is a must if we want to achieve a robust democratic system with peaceful transitions of governmental power and I presuppose that the new constitution will be adopted by a democratically elected constituent assembly, not the interim government. Moreover, a fresh constitution is a must if we want to bypass the problem of the doctrine of basic structure, otherwise, all substantial constitutional changes that may be brought to reform the country may be reversed.

The judiciary imported the doctrine of basic structure into our legal system through the Anwar Hossain Chowdhury v Bangladesh (1989) case and applied it in other important constitutional instances in which the legality of a constitutional amendment was challenged. The basic structure doctrine notes that the constitution has an unamendable basic structure. It holds that the parliament's power to amend the constitution has inherent limitations, and an amendment will lose its legality if it changes the basic structure of the constitution. In simpler words, the constitution cannot be amended in a way that it loses its identity.

In theory, the doctrine of basic structure is a principle that aims to maintain the integrity of the original constitution. However, the doctrine is intrinsically vague, as discussed in my paper titled "The Intrinsically Uncertain Doctrine of Basic Structure" published in the Washington University Jurisprudence Review. While using the doctrine of basic structure, judges note that certain provisions of the constitution cannot be changed. However, they have not provided an exhaustive list of these unamendable provisions, which allows the judges to decide what the basic structure of the constitution is on a case-to-case basis. Although it reads as an originalist principle, it has also been used to contradict a provision present in the original constitution.

The reforms needed to fix the problems of the transition of governmental power and restore democracy in Bangladesh would definitely change the basic structure of the constitution. For example, Brigadier General (retired) M Sakhawat Hussain, adviser to the Ministry of Textile and Jute, recently suggested that Bangladesh may be converted into a federal state, dividing the country into five provinces. Some people suggested a shift to a presidential form of government with a strict separation of powers between the executive and the legislature. Some are advocating for a bicameral legislature. However, these proposed reforms would destroy Bangladesh's unitary form of government. The Supreme Court (SC) has previously struck down the Eighth Amendment that decentralised the High Court Division of the SC because the decentralisation changed the unitary form of the government, which is connected to the basic structure of the constitution. Similarly, the SC might strike down any amendment that challenges the unitary form of government.

If the current constitution stays, the basic structure doctrine will remain. If we try to amend the constitution to get rid of the basic structure doctrine, that too would be a violation of the basic structure and can be struck down by the court. The Indian Parliament has tried innovative ways to amend the basic structure away, but their Supreme Court struck down those amendments.

One way to ensure that the doctrine of basic structure is not used to reverse any substantial progress we achieve in restoring democracy in Bangladesh would be to make the constitutional amendment-making process more rigid. If the process possesses more democratic legitimacy, the court would lose its justification for using the basic structure doctrine. Consider the US system: their Supreme Court is theoretically as powerful as its Indian and Bangladeshi counterparts. However, the US Supreme Court has never struck down a constitutional amendment because the US Constitutional amendment-making process is very rigid and has a lot of democratic legitimacy. An amendment to the US Constitution can be proposed by either two-thirds of the two chambers of US Congress or by a request of two-thirds of the US states through a special convention called for that purpose. A proposed amendment must be ratified by three-fourths of all states to be valid. Because of its rigid nature, the US Constitution has been amended only 27 times despite more than 11,000 attempts. An amendment passing such a long and rigorous process with multiple democratic hurdles cannot be struck down by the judiciary without facing severe criticism.

Unfortunately, making the constitutional amendment process more rigid may also alter the basic structure of the constitution and may be reversed by the Supreme Court of Bangladesh. Thus, to ensure that the constitutional reforms remain unaffected by the politicisation of the judiciary, we have no other option but to adopt a new constitution by calling a constituent assembly.

Nafiz Ahmed teaches jurisprudence at North South University.​

 

[Saif]

Why constitutional reform is essential

The past 50 years of governance under various regimes have shown that ideological frameworks have brought Bangladesh no lasting benefit.

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Why constitutional reform is essential

File Visual: Anwar Sohel

The dream of building a nation rooted in equality, human dignity, and social justice has been a cornerstone of Bangladesh's formation. However, over the past 15 years, this very nation has witnessed a stark departure from those ideals, succumbing to the grip of fascism. Democratic institutions have been systematically dismantled, paving the way for authoritarian rule. Fundamental human rights and democratic freedoms have been trampled, and the aspirations that once drove the people to fight for independence have been replaced by dynastic and repressive systems.

The constitution is, in essence, the "manual" for governing a state. Yet, the present Bangladesh Constitution contains elements that neither reflect the spirit of the country's Liberation War nor safeguard against the rise of fascism. It has, instead, facilitated the authoritarianism of the previous regime in power. While there may be differences of opinion on whether to amend or entirely rewrite the constitution, there is little disagreement that the existing one poses significant obstacles to any future democratic process.

At first glance, one might believe that Bangladesh Constitution upholds the spirit of its independence. However, the principles of equality, human dignity, and social justice enshrined in the declaration of independence have been compromised. This constitution has enabled unchecked power to concentrate in the hands of the prime minister. Through successive amendments, the constitution has primarily centralised authority, serving the interests of those in power.

The constitution's core principles are meant to guide the governance of the state. But what should those principles be? They must be value-based, not ideologically driven. Ideological frameworks inevitably lead to conflict, as society is made up of diverse beliefs. One person might support an Islamic system of governance, while another advocate for secularism. One individual may be a proponent of Bengali nationalism, while another subscribes to Bangladeshi nationalism. If the constitution aligns with any single ideology, it inherently dismisses and alienates those with differing views, posing a serious barrier to building an inclusive society.

What, then, should the foundation of the constitution be? It should rest solely on democracy and the values of equality, human dignity, and social justice, as proclaimed in the declaration of independence. Beyond this, no other ideology—whether socialism, nationalism (Bengali or Bangladeshi), secularism, or religious beliefs—should serve as the guiding principle of the constitution. These ideologies do not align with the needs of a modern state.

The past 50 years of governance under various regimes have shown that ideological frameworks have brought Bangladesh no lasting benefit, instead deepening divisions. The constitution must not embrace any ideology that sparks opposition from any part of society. Its focus should remain on the rules and regulations that govern the state's operations. The state itself should be devoid of any ideological affiliation. Its sole aim is to serve the people and ensure their security through a system of accountable governance. When any ideology—especially one linked to the two dominant political forces of the past 50 years, Awami League and BNP—becomes the basis for governance, the nation is pushed towards conflict. Embracing such an ideological basis means returning to the divisive politics that have already fractured the country.

The four ideological principles enshrined in the current Bangladesh Constitution are essentially the core tenets of a political party, often referred to as "Mujibism." This ideological basis was included without a broader national consensus, reflecting the dominance of one political group's agenda over the people's collective will. The post-independence constitution was drafted by members of the constituent assembly, who had been elected for Pakistan's legislative body, not to create an independent nation. Following a nine-month independence war, the hopes and aspirations of the people had evolved. Given this transformation, it would have been appropriate to form a new constituent assembly through elections, with the mandate to draft the constitution and submit its guiding principles for a public referendum. However, instead of taking such inclusive measures, one party's ideology was imposed as the national ideology through the constitution.

The second critical issue lies in the relationship between the state and religion. A state should not endorse any particular religion; it must belong to all its citizens, regardless of faith. The state's primary role is to ensure equal rights and dignity for all religious groups and people. The constitution must, therefore, be secular in the truest sense, reflecting a commitment to equal treatment for all. However, the current constitution retains elements linking the state to political ideologies and religious identities, leading to an inherent contradiction.

One of the most glaring problems with the constitution is that it concentrates enormous power in the hands of the prime minister. The officeholder simultaneously holds four crucial positions: prime minister, head of the ruling party, leader of the parliamentary party, and leader of the parliament itself. While the president is technically the highest-ranking official in the state, the constitution subordinates the president to the prime minister. The president must act on the advice of the prime minister, rendering the role largely ceremonial and devoid of real power. This has led to the repeated election of presidents who are seen as loyal to the prime minister rather than independent figures who can serve as a check on executive power.

The prime minister's unchecked authority extends across the government, from the formation of the cabinet to appointments in key constitutional posts. Without the prime minister's approval, no one can be appointed to a significant constitutional position. This consolidation of power has transformed the prime minister into a de facto autocrat, particularly in a parliamentary system where the government (executive branch) is formed from the majority party in parliament. Given the additional powers granted to the prime minister by the constitution, the position has taken on the characteristics of a dictatorship.

Moreover, the current constitution has effectively transferred the same authority and power that a president would hold in a presidential system to the prime minister without the necessary mechanisms for accountability. Since the ruling party typically holds a majority in parliament, it becomes nearly impossible for parliament to hold the prime minister accountable. Instead of serving as a body that scrutinises the executive's actions, the parliament has become a rubber stamp that merely approves executive decisions and the government's agenda.

One of the most contentious elements of our constitution is Article 70, which severely restricts the ability of members of parliament (MP) to vote against their party. No MP is permitted to vote against their party's decisions, including decisions made by the government if their party is in power. If an MP dares to defy this rule, they risk losing their parliamentary seat. Rather than representing the interests of their constituents, this provision forces MPs to toe the party line and reduce them to voicing the will of the party leadership, eliminating any possibility of dissent or debate within the legislative body.

The implications of Article 70 are far-reaching, particularly when the head of the party, the parliamentary leader, and the prime minister are all the same person. This concentration of authority leads to a situation where both the executive and legislative branches of government are controlled by a single individual.

In light of this, it becomes evident that the current constitution contains all the necessary ingredients for a prime minister to evolve into an authoritarian ruler. With no constitutional provision limiting how many times a person can hold the office of prime minister, the same individual can remain in power indefinitely. This creates a cycle in which power is concentrated in the hands of a single person, with no meaningful checks from either parliament or the judiciary. The concentration of power, absence of genuine accountability, and the intertwining of state and party ideology have all contributed to a deeply flawed system of governance.

The only way to address these critical flaws is through substantial reform of the constitution or even a complete rewriting of it. Without meaningful reforms to the constitution—especially those that restore the balance of power and ensure true accountability—Bangladesh risks continuing down the path of authoritarian rule, with its democratic institutions weakened and its people further marginalised.

To ensure a balanced, inclusive, and accountable system of governance, several key issues must be addressed:

1. Term limits for the prime minister: A constitutional provision should be introduced to prevent any individual from serving more than two terms as prime minister. In addition, the selection process for the prime minister could be modified to resemble that of the president, with an indirect election by members of parliament, ensuring a more democratic and less autocratic process.

2. Separation of key leadership roles: The constitution must ensure that the positions of party leader, head of the executive (prime minister), leader of the parliamentary party, and leader of parliament are never held by the same individual. This separation is crucial to avoid the dangerous concentration of power in a single person, which undermines both democracy and accountability.

3. Abolition of Article 70: Article 70 infringes on the independence of MPs and contradicts the spirit of parliamentary democracy, as it eliminates the possibility of meaningful debate and dissent within parliament and prevents MPs from voting against their party. Its removal is essential for ensuring government accountability through a truly functional legislature.

4. Balancing powers between the prime minister and president: There must be a redistribution of power between the prime minister and the president to prevent an excessive concentration of authority in the hands of a single person. Furthermore, the constitution must include mechanisms to ensure "checks and balances" among the three branches of government—executive, legislative, and judicial—so that no single branch can dominate the others unchecked.

5. Framework for transfer of power: A clear and robust framework for peaceful power transfer, including provisions for an interim government (caretaker government), is essential to safeguard free and fair elections. The reintroduction of a caretaker government system, with necessary amendments, should be considered.

6. Bicameral legislature: To reduce the concentration of power within a single political party, a bicameral (two-chamber) legislative system should be established. This would allow for broader representation and promote a more inclusive democratic process, ensuring that different voices are heard and represented in the legislative process.

7. Value-based constitution, not ideology-based: The constitution should be rooted in universal values such as democracy, equality, human dignity, and justice rather than any particular political ideology. Divisive issues should be excluded from the constitution to help prevent further division and conflict in society.

Without substantial reform of the constitution, it is impossible to create a balanced system of governance where power is properly distributed among different branches of the government and the democratic process is safeguarded. A revised constitution must prioritise the establishment of checks and balances, ensure the independence of parliament, and place meaningful limitations on executive power, including term limits for the prime minister. Only then can Bangladesh hope to restore true democratic governance and prevent the rise of authoritarianism.

Sahid Islam is pursuing PhD at the University of Florida.​

 

[Saif]

First meeting of constitution reform commission held virtually

The first meeting of the Constitution Reform Commission was held virtually on Sunday evening, according to a press release

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First meeting of constitution reform commission held virtually

The first meeting of the Constitution Reform Commission was held virtually yesterday evening, according to a press release.

During the meeting, discussions were held regarding the commission's scope of work and operational procedures. The press release stated that a decision was made to create an official email account for public communication, and a website for the commission will be launched soon.

The next meeting of the commission is scheduled to be held on October 21 at its office in Dhaka. The press release also mentioned that the government is in the process of setting up the commission's office in the parliament area.

The meeting was presided over by the commission's head, Professor Ali Riaz, and attended by members Professor Sumaiya Khair, Barrister Imran Siddique, Professor Mohammad Ikramul Haque, Barrister M Moin Alam Ferozi, Firoz Ahmed, Md Mustain Billah, and Md Mahfuz Alam.​

 

[Saif]

The case for overhaul of constitution in post-Hasina Bangladesh

The interim government, led by Prof. Yunus, has established more than half a dozen commissions, signaling an agenda that goes beyond merely organising free and fair elections. The government appears intent on initiating broad reforms across key sectors, including a potential overhaul of the nation'

thefinancialexpress.com.bd

The case for overhaul of constitution in post-Hasina Bangladesh
CAF Dowlah
Published :
Oct 21, 2024 21:41
Updated :
Oct 21, 2024 21:41

The interim government, led by Prof. Yunus, has established more than half a dozen commissions, signaling an agenda that goes beyond merely organising free and fair elections. The government appears intent on initiating broad reforms across key sectors, including a potential overhaul of the nation's constitution.

The call for constitutional reform has gained momentum, especially among the leaders of the student-led movement that ousted Sheikh Hasina's autocratic regime. These leaders argue that the current constitution enables the concentration of power in the hands of a single individual, a concern echoed by many in civil society and the intelligentsia.

Unsurprisingly, various suggestions have emerged on how to reform the constitution to ensure a true separation of powers among the executive, legislative, and judicial branches, and to establish effective checks and balances to prevent future autocratic regimes.

Under the previous regime, power was largely concentrated in the hands of the prime minister, who selfishly manipulated the parliamentary system outlined in the country's original 1972 constitution. Though this system has been disrupted several times by martial laws and shifts to a presidential system, it remains the default framework of governance.

The constitution has already been amended 17 times in about five decades. In comparison, the U.S. Constitution has been amended 27 times in 250 years, India's 106 times since 1950, and Pakistan's 25 times.

Blaming the parliamentary system itself for Sheikh Hasina's excesses is however misguided. In theory, parliamentary systems offer mechanisms to ensure the executive is accountable to the legislature. The problem arises when, as in Bangladesh, the prime minister leads both branches, concentrating excessive power.

Moreover, outcomes of parliamentary systems have varied significantly. The system has functioned effectively in the UK, its birth place, for centuries. In India also it worked well, except during Indira Gandhi's emergency rule in the early 1970s. While some countries like Singapore and Malaysia have shown authoritarian tendencies, some countries, like Canada and Japan, have enjoyed stable governance under parliamentary rule.

Presidential systems are however more widespread, with over 100 countries using full or semi-presidential systems compared to only about three dozen countries with parliamentary systems. Many countries-such as the U.S., Brazil, Mexico, and Indonesia-have adopted full presidential systems, while others, like France and Russia, have adopted semi-presidential systems where power is shared between a president and a prime minister.

Given Bangladesh's troubled experience with parliamentary rule, some argue the country should switch to a presidential system to ensure a better separation of powers and prevent future autocracies. This commentator also believes that to modernize governance, strengthen democracy, and prevent the return of autocracy or dictatorship, Bangladesh must undergo some targeted constitutional reforms, as outlined below.

First, switch to a Presidential Form of government to ensure proper separation of powers and checks and balances between the executive, legislative, and judicial branches.

Second, adopt a Bicameral Legislature, under which an Upper House could provide a check on the Lower House, and approve top-level appointments, such as chairs and members of statutory commissions and agencies, the High Court, and Supreme Court judges, and so on.

Third, grant the president emergency powers so that in times of national crisis or other emergencies, or general elections, the head of state can dissolve parliament, and appoint interim or national government, without requiring consent of the prime minister.

Fourth, introduce a Federal structure by transforming the existing Divisions into Provinces, and placing the provinces under elected governors. This would result in massive decentralization and de-concentration of power, on top of bringing the government closer to the people.

Fifth, impose term limits for key positions such as the president, prime minister, members of parliament, and High Court and Supreme Court judges-this will prevent long-term entrenchment of power.

Sixth, make the Caretaker government system a permanent feature of the constitution to ensure free and fair elections for foreseeable future. The caretaker system has a proven record of conducting transparent elections-there was no fair and free election in the country since its discontinuation.

Seventh, ensure independence of judiciary by creating a legal framework. The existing constitution not only denies independence to the judiciary, it also does not provide a legal framework for its independent operation. The judiciary, however, must be subject to public scrutiny to ensure its accountability.

Finally, add a Due Process Clause into the constitution to ensure that no citizen can be deprived of life, liberty, or property without following proper legal procedures, following the Magna Carta in the UK and the Fifth Amendment of the U.S. Constitution. Such a clause would constitutionally prevent arrests from homes or properties without a court order. The police would only be allowed to make arrests when individuals are actively committing a crime. Additionally, the authority to file legal cases would be transferred from the police to state-appointed attorneys to ensure more objective legal process.

In conclusion, some observers have questioned in the press whether the interim government has the authority to reform or rewrite the constitution. However, as several retired Bangladesh Supreme Court judges have pointed out recently, any government that assumes power through mass uprising or revolution gains the legitimacy to enact sweeping reforms, and even to abrogate the constitution. The 1971 Liberation War, for example, granted legitimacy to those who framed the original constitution of Bangladesh in 1972.

Therefore, there is little ground to debate the interim government's authority to pursue constitutional reforms. However, the government's approach to these reforms appears flawed. For instance, the Constitutional Reform Commission is led by a political scientist, when it should be chaired by a distinguished legal expert to ensure both expertise and public confidence in the process.

Dr. Dowlah is a retired Professor of Economics and Law in the United States. Currently, he serves as the Chairperson of the Bangladesh Institute of Policy Studies.​

 

[Saif]

A ‘new’ constitution and our obsession with texts

Our parliament, on the other hand, drafted a self-defeating provision, Article 7B, by declaring one-third of the text of the constitution as unamendable through the usual constitutional amendment process.

www.thedailystar.net

A ‘new’ constitution and our obsession with texts

When democratic erosion or backsliding is the norm, even rigid amendment processes do not help. VISUAL: SALMAN SAKIB SHAHRYAR

Since the fall of the Sheikh Hasina regime, I have been raising concerns about why a new constitution may not be helpful in bringing in or restoring the culture of constitutionalism for us. The concerns that I have about drafting a new constitution are twofold: one is with respect to the process, and the other is regarding the substance. I use examples primarily from the Global South to substantiate my arguments because, as modern studies in constitutionalism suggest, comparing inherently dissimilar cases with dissimilar politico-constitutional culture and history can provide essentially fallacious and problematic conclusions.

With respect to the substance, a major worry around drafting a new constitution is whether we can duly accommodate the non-dominant identitarian elements therein. Indeed, constitution-making can usher in a rather zero-sum game if the non-dominant voices are not accommodated, which, as per scholars, is the primary purpose of any constitution, particularly in "divided societies." One may say we ought to get rid of the identitarian elements (e.g. secularism, nationalism) altogether, but whether that would really solve our deep-seated ideological conflicts sustainably is an important question to ask. Because, in divided societies, different factions need "constitutional insurance," and getting rid of the identitarian elements altogether may potentially create an insurance deficit.

More importantly, the constitution-making episode cannot—and normatively, should not—be viewed as a "defining moment" to potentially solve all our ideological crises and identitarian problems at once. The idea is to take a rather incremental approach in defining and contesting the identities that define a polity, as the democratic spaces broaden, and as electoral processes smoothly function. An incremental evolutive process can even transform apparently rigid identities into overarching values or inclusive constitutional norms to abide by. We have not experienced such an incremental evolution due to the lack of a sustained democratic culture with an independent higher judiciary at its guard.

Regarding the process, we can all agree on principle that a new constitution should come through an elected constituent assembly, if at all. Some argue in favour of first drafting a constitution (perhaps through inter-party consultations) and then going for a referendum. This, in my opinion, will not be a truly democratic and participatory process. Such a referendum, with perhaps simple yes-no questions, will leave all the contested questions unsolved. Without the scope for debating or interrogating the areas that impact the lived experiences of the minorities, such referendums will only bring in acontextual majoritarian results. In many jurisdictions of the Global South (e.g. parts of Latin America, Africa), referendums have been abused and manipulated over the years only to suit the needs of parties in power. A referendum, however, can be useful in deciding whether or not to go for a new constitution-making episode.

In any case, a major worry around the process of constitution-making is whether all stakeholders can duly be made part of it. Negotiating a new constitution can re-enforce divisions, entrench schisms, and lead to further conflicts. In recent times, constitution-making processes have been unsuccessful at various levels across jurisdictions (e.g. Fiji, Yemen, and Myanmar, to name a few). One of the most prominent examples of a "successful" constitution-making episode is that of Nepal, although we need to critically interrogate the success Nepal experienced. The drafting process in Nepal began in 2006 and ended in 2015; in the meantime, it experienced wanton violence and enormous ethnic conflicts throughout the country. In the context of modern constitution-making, it has been empirically proven that unless constitution-making processes are unilateral, they are virtually never smooth in divided societies.

Furthermore, while making a constitution is certainly not a one-off business, its outcome is expected to survive for a substantive period. While we ask what political insurance there would be that a democratically elected government will bring in required constitutional reforms, we forget to ask what political insurance there is that even a new constitution will survive and not backslide. Will it survive only because it is new? Given the political culture in Bangladesh, it is imperative to articulate the exact political insurance that will undergird a new constitution. Because otherwise, as was the case with constitutional amendments, we can very conveniently slide into the culture of making new constitutions too. Helpful to know, in some parts of the Latin Americas, Asia and Africa, making new constitutions has emerged as rather a political amusement, with political parties wanting to make a new constitution if/when it suits them.

A major issue with our current constitution is thought to be the basic structure doctrine. It is argued that whatever changes are made to the existing constitution may be declared unconstitutional by the court on the ground that they violate its basic structure. In my opinion, it is not the basic structure doctrine that is problematic, rather the way it has evolved in our jurisdiction. Normatively speaking, basic structure is a useful counter-majoritarian tool, with the judiciary working as a neutral arbiter against the tendencies of albeit authoritarian parliaments in amending the constitution. Basic structure should, in fact, be imagined as a value-laden tool—certain principles undergirding constitutionalism, liberal democracy, and the idea of a limited government should be viewed as the basic structure (e.g. separation of powers, rule of law, independence of judiciary) and not what the text says.

But we have always been obsessed with text—be it as judiciary, as legislature, or even as academia. Our apex court first viewed the "unitary character" of the state as part of the basic structure of the constitution to hold as unconstitutional a constitutional amendment decentralising the High Court Division. The court, however, did not substantiate how the "unitary character" of the Supreme Court benefits or impinges on liberal democracy or the culture of constitutionalism. But many in the academia celebrated that as basic structure only because the text backs such a hypothesis. Interestingly, in certain contexts, the federal structure of a state can be thought to be part of "liberal democracy" when autonomous state units or federal devolution of powers is a politico-historic contingency and is inherently connected with distinct peoples' civil-political rights (e.g. Spain, India). However, holding as unconstitutional the decentralisation of the High Court Division based on the "unitary character" of the state, without establishing its relationship with constitutionalism or democracy, only manifested a rather imprecise, textualist reading on the part of the judiciary. A value-based, rather than text-based, approach to reading and applying (or not applying) the basic structure doctrine can certainly protect amendments deemed essential to benefit constitutionalism.

Our parliament, on the other hand, drafted a self-defeating provision, Article 7B, by declaring one-third of the text of the constitution as unamendable through the usual constitutional amendment process. Article 7B was not brought by the original/primary constituent power (i.e. it was not part of the original constitution) and not through any referendum either. Just because 7B says that it is unamendable, it does not miraculously become unamendable. Similarly, a special process (such as referendum) does not automatically become a requirement for getting it amended. I see Article 7B both as easily amendable and as unconstitutional. Indeed, I may say that a provision like 7B defeats the basic structure of any democratic constitution, which should, by its very nature, be evolutive. Indeed, the only exception for such evolution should be principles that undergird the sustenance of a liberal democratic polity. Also, for those who only worry that new amendments may be declared unconstitutional by the court, in South Africa, even the new constitution was declared unconstitutional by the court for not conforming with the principles as negotiated earlier.

In a bid to get rid of the basic structure doctrine, we may argue for stricter methods of constitutional amendment. But would that be helpful too? When democratic erosion or backsliding is the norm, even rigid amendment processes do not help. Because parties in power may always find a way to manipulate such rigidity. Unsurprisingly, of course, making a new(er) constitution to bypass the rigidity of the older one (the one we draft now) will be a genuine political possibility. In fact, bypassing the rigidity can even manifest as the sole reason to make a new(er) constitution.

Furthermore, a rigid method of constitutional amendment is particularly problematic for the fringe-dwellers (e.g. women, Indigenous peoples, and other such minorities) who rather have to map their position within the constitutional landscape in and through constant contestations. Take, for instance, the 19th constitutional amendment (recognising voting rights of women) in the US that literally, for the first time, viewed women as equal citizens, and it took decades of movement and mobilisation from women's rights groups in the US to materialise that. A rigid constitution (with a strict amendment process or even with an eternity clause such as 7B) can be essentially counterintuitive in this context.

For drafting a new constitution in 2024, South Africa's instance should ideally be considered instructive as a progressive and rights-based written constitution. Notably, it prohibits both direct and indirect discrimination on one or more grounds, including sex, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, conscience, belief, culture, language, and birth. Call me a pessimist, but I am almost certain that, in the current context, we will not be able to draft a truly inclusive constitution for everyone across multiple axes and intersections. On top of that, if there is rigidity in the amendment process, that will invariably militate against the negotiating rights of minorities. To overcome the text deficit, we will have to depend on an activist judiciary and its adventurist reading of the constitution (the position of the US Supreme Court vis-à-vis the rigid American constitution is instructive here). Now, if we cannot trust the judiciary with the basic structure doctrine, how can we trust it with creating new rights or going overboard with its interpretation on other fronts?

Finally, I have multiple issues with the text of our existing constitution; particularly, I think that it does not solve all our inclusivity concerns, but I do not expect the text to do everything either. Indeed, we ask all the right questions about rights, politics and governance, but seek their answers at the wrong place. Written constitutions can only entail a political arrangement or a rather imperfect ideological settlement that a culture of constitutionalism will carry forward, bend, tweak, and add life to. It is indeed not the text, but the overarching politico-constitutional culture that it operates in. If anything, the existing constitution has given us a culture of constitutionalism at some points at least, even if briefly. We have mapped our rights in contestation with the constitution over the years.

However, an entirely "new" constitution, while romanticised as "a clean slate," may make things worse on multiple fronts. At the risk of sounding unpopular and mundane, I see constitutional amendments as the way to go. As I have argued elsewhere, the newly formed constitutional reform commission, upon wider consultations with all relevant stakeholders, may identify specific areas and recommend that certain principles are formulated to potentially guide the next constitution amendment episode and also perhaps suggest the nitty-gritty of doing so. We also have to manage our expectations with respect to reforms we put on the table. Indeed, no reform can make us a "better" state with an improved constitutional culture overnight unless we reform our political parties and guarantor institutions to prevent democratic erosion or backsliding.

Psymhe Wadud teaches law at the University of Dhaka and is in charge of Law & Our Rights in The Daily Star.​

 

[Saif]

Navigating constitutional predicaments in post-Hasina Bangladesh

President Shahabuddin’s conflicting statements regarding Sheikh Hasina’s resignation have ignited a nationwide outcry and demands for his immediate removal, plunging the country into a profound constitutional crisis. The interim government’s muddled response has only deepened the

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Navigating constitutional predicaments in post-Hasina Bangladesh
CAF Dowlah
Published :
Oct 28, 2024 21:47
Updated :
Oct 28, 2024 21:47

Protesters gather in Dhaka on October 22, 2024, demanding the resignation of President Mohammed Shahabuddin after his comments that he had no documents proving that former Prime Minister Sheikh Hasina had resigned before fleeing the country Photo : Agency

President Shahabuddin’s conflicting statements regarding Sheikh Hasina’s resignation have ignited a nationwide outcry and demands for his immediate removal, plunging the country into a profound constitutional crisis. The interim government’s muddled response has only deepened the turmoil. One adviser accused the president of lying and violating his oath, while some others, perhaps hoping to avoid further instability, have downplayed the issue as merely political rather than legal or constitutional. The crisis has not cooled down.

At the heart of the controversy lies the president’s televised claim that he had received and accepted Hasina’s resignation before the interim government was installed. Two and a half months later, he contradicted himself by denying ever having received or seen the resignation letter. Clearly, the nation is misled by the president’s brazenness, and it did cost him moral authority to remain in office. Worse still, the absence of any clear constitutional mechanism for removing him has now resulted in a profound legal deadlock.

The president’s conflicting statements have cast doubt on whether Hasina officially resigned, although this question is ultimately irrelevant due to her own actions. By fleeing the country to avoid accountability for the mass killings and political disappearances that defined her oppressive rule, Hasina effectively abandoned her position. Evidently, confronted with the threat of mob justice, she chose self-preservation over personally submitting a resignation letter to the president. Moreover, her regime lacked legitimacy throughout—she clung to power through sham, voter-less elections and she systematically demoralized or criminalized almost every institution in the country to maintain her stranglehold.

Meanwhile, the interim government, established after the collapse of Hasina’s regime, has been struggling with a persistent constitutional crisis. In a way reminiscent of Columbus accidentally discovering the Americas while searching for a route to India, the Anti-Discrimination Student Movement—originally focused on abolishing the government job quota system—ended up toppling Hasina’s authoritarian rule, achieving far more than they had initially aimed for. This unexpected success forced them into uncharted territory, taking on the responsibility of governing. The interim administration they formed mainly consists of NGO members and aging technocrats, many of whom lack the political experience needed to navigate the complexities of a post-Hasina Bangladesh.

Moreover, rather than abrogating the constitution, as is often done in revolutionary uprisings, the interim government chose to operate within constitutional boundaries, invoking presidential powers to appoint itself—an authority the president never held. The Supreme Court then invoked the “doctrine of necessity” to justify these extra- constitutional measures, putting the government at odds with constitutional principles. The president’s contradictory statements regarding Hasina’s resignation have further eroded the government’s legitimacy.

Amid these crises, the Student Movement has consolidated its demands into five key points: removing President Shahabuddin, annulling the 1972 Constitution, banning the Awami League’s student wing (Chhatra League), issuing a “Proclamation of the Republic” to govern post-Hasina Bangladesh, and invalidating the elections of 2014, 2018, and 2024. These demands mark a profound shift from protest to a full-blown revolution, reflecting their determination to reshape the country’s political landscape fundamentally.

Facing pressure from its own backers, the interim government has already banned the Chhatra League, but on the question of the president’s resignation, it is seeking a consensus among political parties. While the Student Movement pushes for revolutionary change, such as complete rewriting of the constitution and proclamation of new Republic, the government has taken a more cautious, gradual approach, highlighting a growing tension between the movement and the government it helped install.

The Path Forward

The current situation in Bangladesh bears striking similarities to historical revolutions that lost direction and ultimately failed. One can think of the Russian Revolution of 1905, which faltered due to a lack of unified leadership; the fractured Arab Spring in Egypt in 2011, which saw the military regain control; and the French Revolution of 1789, which spiraled into the Reign of Terror and led to the rise of Napoleon. Without a clear strategy and experienced leadership, the Student Movement also risks being overwhelmed by the forces it has unleashed, akin to “riding a tiger.”

To avert catastrophe, both student leaders and the interim government must adopt a bold, decisive strategy as follows:

Restore constitutional and legal legitimacy: Immediately form a commission of legal experts to evaluate, amend, or invoke emergency provisions within the Constitution to cement the interim government’s authority. Alternatively, if the situation demands, abrogate the current Constitution and govern through extra-constitutional measures. It is time to stop straddling both sides—choose a clear path forward, and commit to it.

Replace the President: Immediately remove Shahabuddin—he has lost all credibility to remain as president. If he refuses to resign voluntarily, pass a cabinet resolution to dismiss him and appoint a neutral interim president with strong support from the Student Movement and key political parties. Do not allow mob to oust him from power—handle it through firm, legitimate channels.

Balance student’ demands with pragmatic policies: Address the Student Movement’s five-point demands with strategic restraint to avoid triggering deeper crises. Proposals to declare a new republic, rewrite the Constitution, or invalidate past elections must be pursued only with strong consensus across political parties—any unilateral move may destabilize the nation irreversibly.

Set a timeline for free and fair elections: While the interim government’s mission extends beyond simply transferring power, holding a free and fair election must be the top priority. Focus on essential reforms and leave more extensive changes to the next elected administration. Enough time has been wasted on endless commissions with vague and meaningless agendas. Instead, shift all efforts towards preparing for credible elections. The nation’s patience is wearing thin, the threat from defeated forces is growing, and any delay in handing over power to elected leaders could put the entire revolution at risk.

Seek guidance from experienced leaders: While student leaders have demonstrated remarkable dedication and patriotism, they would greatly benefit from the guidance of seasoned political advisors, legal scholars, and international experts. The interim government, which has thus far failed to show effective leadership or drive, must replace ineffective advisors with capable ones. The government must also establish a Strategic Governance Team with capable personalities to push reforms forward and manage crises with skill and urgency.

END NOTE

In sum, the nation faces a profound constitutional crisis, with the interim government sending mixed signals—promising to uphold the constitution while hinting at exceeding its authority. It talks of reforms yet remains preoccupied with building consensus among political parties, each with competing goals. Some demand immediate elections, while others seek delays to consolidate their power.

Meanwhile, the armed forces, who sided with the mass uprising by refusing to suppress protesters, continue to back the interim government, though doubts linger about their loyalty. A sharp divide exists between the revolutionary vision of the Student Movement—calling for a new republic and a new constitution—and the interim government’s cautious approach, balancing political compromise and selective adherence to constitutional norms.

In this volatile mix of power struggles and shifting alliances, the path forward requires clarity and decisive action. The interim government must implement the outlined measures to restore constitutional order, stabilize the nation, and build a foundation for democratic governance. Failure to do so risks turning this revolution—fueled by the blood and sacrifices of countless students and citizens—into yet another tragic chapter in the history of failed uprisings.

Dr CAF Dowlah is a retired Professor of Economics and Law in the United States. Currently, he serves as the Chairperson of the Bangladesh Institute of Policy Studies.​

 

[Saif]

Bangladesh constitution: Must be updated to prevent autocratic rule

Dr Kamal Hossain, emeritus president of Gono Forum, yesterday recommended updating the constitution.

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Bangladesh constitution: Must be updated to prevent autocratic rule
Dr Kamal says country at historic crossroads

Photo: Collected

Dr Kamal Hossain, emeritus president of Gono Forum, yesterday recommended updating the constitution.

He made the recommendation when Constitutional Reform Commission members, led by its chief Prof Ali Riaz, called on him at his office at the capital's Motijheel, said a press release of the commission. The process for reform was also discussed at the meeting.

At a separate programme, Dr Kamal said Bangladesh stands at a turning point in history.

"We secured our rights through struggle," he said, adding, "Before these rights were inscribed in our constitution, they were deeply rooted in our hearts. Similarly, in 1971, the constitution was framed based on the rights earned through the Liberation War, highlighting the importance of eradicating inequality and upholding secularism.

"We are indeed at a critical juncture. It is imperative to recommend constitutional amendments that eliminate the possibility of authoritarian rule," he said.

The event held at Dhaka University's RC Majumdar Auditorium was jointly organised by the Reading Club Trust and aynerkotha.com in the afternoon.

Following the Liberation War, Dr Kamal, then serving as the law minister, led a committee to draft the constitution. The draft was adopted by the Constituent Assembly on November 4, 1972, and put into effect on December 16, 1972.

Focus on constitutional reform was renewed after Chief Adviser Prof Muhammed Yunus formed an interim government on August 5 after Hasina's ouster, sparking debates over constitutional amendments.

While some called for amendments, others advocated for a completely new one, following which Yunus announced the formation of 10 commissions aimed at reforming the state.

Referring to the events of July and August, Dr Kamal remarked, "The brutal violence and repression inflicted on our students and numerous citizens, the disregard for the rule of law -- these experiences must be enshrined in our Constitution. We are responsible for reforming the Constitution in a way that prevents any recurrence of such injustices in the future."

At the event, constitution researcher Arif Khan presented the keynote speech, while political analyst Dr Zahed Ur Rahman and senior Supreme Court advocate Mustafizur Rahman Khan participated as discussants.

In his keynote ‍speech, Arif Khan described the student-led uprising as a mass-awakening against state oppression.

"This movement has presented us with an opportunity for self-reconstruction by addressing critical historical and structural errors," he noted.

Khan argued for preserving the constitutional ideals that arose from the nation's political struggles and heritage.

"Any attempt to replace the constitutional framework shaped by the Liberation War would lead to ideological conflicts and a void in national life, so our current duty should be a constitutional renaissance, not replacement," he asserted.

Zahed Ur Rahman said the Awami League had eroded the electoral system, leading to the uprising. He called for the reestablishment of a caretaker government system to facilitate credible elections.

Zahed further commented that there is no pressing justification for those advocating for a complete rewriting of the constitution.

"There is no document in the world that can simply be put in place to solve all problems," he said, emphasising that reform, rather than a total rewrite, is preferable.

Regarding the idea of a bicameral parliament, he suggested that the lower house could continue to be elected through the current system, while members of the upper house could be selected proportionally based on the lower house's vote counts.

He noted that this system could help establish a balanced dynamic between the two chambers of parliament.

Mustafizur Rahman Khan advocated for elected governments to hold the authority to amend the Constitution. He urged the government to prioritise private sector development to reduce unemployment among university graduates.

Md Zulfikar Islam, CEO of Reading Club Trust, delivered the welcome address at the event, which was attended by reading associates, faculty and students from various universities, and people from diverse backgrounds.​

 

[Saif]

Perpetrators of July-August violence will be excluded from constitutional reform process: Ali Riaz

Head of the Constitution Reform Commission Prof Ali Riaz yesterday said individuals, organisations, institutions or parties who were actively involved in the killings during the July-August student uprising will not be included in the constitutional reform process

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Perpetrators of July-August violence will be excluded from constitutional reform process: Ali Riaz

Head of the Constitution Reform Commission Prof Ali Riaz yesterday said individuals, organisations, institutions or parties who were actively involved in the killings during the July-August student uprising will not be included in the constitutional reform process.

In a written address at a briefing of the Constitution Reform Commission held at the LD Hall of Parliament, Prof Riaz said that the commission will seek insights from a broad spectrum of stakeholders, including legal experts, civil society leaders, youth activists, and cultural representatives. "We will also hold discussions with representatives from the Anti-Discrimination Student Movement and the National Citizen Committee," he said.

He further clarified the commission's commitment to neutrality, explaining, "The Reform Commission will not engage directly with political parties but will request written opinions and specific proposals."

At the briefing, chief adviser's special assistant Mahfuj Alam said that constitutional questions emerged with the call for a new political settlement in Bangladesh.

"When the one-point demand was announced, it was stated that the old political settlement would be rejected in favour of a new one. This, essentially, means a new constitution," said Mahfuj Alam. "Hearing this, the people of Bangladesh were inspired to mobilise."

As a member of the commission, Mahfuj emphasised that the commission's recommendations are intended for implementation by the current interim government. Responding to questions about who would carry out the commission's recommendations, he clarified, "It's a political decision. But if I may speak as a student representative, I am confident this government will implement it. Why wouldn't it?"

He acknowledged the unique nature of the interim government, noting, "This government may be unelected, but it represents the people under exceptional circumstances. In this scenario, terms like 'parliament,' 'election,' and 'elected' carry less weight."

He outlined that after the commission submits its proposals, political parties will be invited to discuss and contribute to the implementation process. "There will be participation from political parties," he said, assuring that the process would involve collaboration.

The commission is charged with reviewing, amending, and potentially rewriting the current constitution to better reflect public aspirations.

"The commission will consider equality, human dignity, social justice, and the foundational goals of the Liberation War, aiming to establish a non-discriminatory democratic state," Prof Riaz said, outlining primary objectives for reform.

These include establishing a participatory democracy, ensuring meaningful political involvement, preventing the emergence of authoritarian regimes, balancing the powers of government branches, decentralising authority, and safeguarding the independence of key institutions.

To encourage public involvement, he announced that a dedicated website will go live Tuesday, allowing citizens to submit their suggestions.​

 

[Saif]

Enforcing economic and social rights through constitutional interpretation

The judiciary has a critical role in interpreting the economic and social rights as essential to achieving the preamble’s broad aims.

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Enforcing economic and social rights through constitutional interpretation
The Preamble of Bangladesh’s Constitution, as an internal aid to interpretation, captures both the struggles of the past and the aspirations for the future, offering a profound guide to interpreting economic and social rights.

FILE VISUAL: STAR

As we remember the 52nd anniversary of its constitution, we are reminded of our nation's enduring pursuit of justice, equality, and freedom. However, the constitution's promises of economic and social rights, enshrined in our foundational principles, remain non-justiciable, ostensibly leaving the judiciary without a clear mandate to enforce them. It is a fitting time to explore how these rights, if properly interpreted and applied, could become enforceable by using internal and external interpretative aids, aligned with both the intentions of the constitution's framers and the needs of the people today.

The Preamble of Bangladesh's Constitution, as an internal aid to interpretation, captures both the struggles of the past and the aspirations for the future, offering a profound guide to interpreting economic and social rights. Declaring as a fundamental aim of the state the assurance of "fundamental human rights," the preamble does not differentiate between civil-political and socio-economic rights. This non-differentiation aligns economic and social rights—like social and economic freedom, justice, and equality—with the core duties of the state. Thus, implementing these rights is not an optional exercise but a fundamental obligation underlined by the preamble. The state's duty, as expressed here, is not limited to declarative aspirations; rather, it charges the judiciary, vested with the power of judicial review, to ensure the enforcement of these rights wherever possible.

By referring explicitly to socio-economic ideals like social freedom, economic freedom, and justice "to be secured for all citizens," the preamble urges the judiciary to concretise these goals in real situations. The judiciary, therefore, has a critical role in interpreting and applying these principles, recognising economic and social rights as essential to achieving the preamble's broad aims.

The guiding function of Article 8(2) of the constitution, which mandates that the principles of state policy "shall be a guide to the interpretation of the Constitution and the other laws of Bangladesh," further empowers the judiciary. This phrase effectively grants the judiciary latitude to interpret any law or constitutional provision through the lens of these fundamental principles, bridging the gap between justiciable and non-justiciable rights. By engaging with the broad aims of Article 8(2), the judiciary can evaluate and analyse not only constitutional provisions but also the nation's laws to advance socio-economic rights.

This interpretive flexibility opens pathways for judicial action, allowing the courts to align statutory interpretations with the broader constitutional goals laid out in Article 8(2). The judiciary's responsibility extends beyond passive recognition of these rights; it encompasses an active role in evaluating provisions and laws in ways that fulfill Bangladesh's fundamental objectives. This interpretive scope requires judges to construe economic and social rights as integral components within the larger structure of justiciable rights and constitutional governance.

The conventional positivist approach interprets constitutional provisions in isolation, which has often restricted the enforceability of economic and social rights. In contrast, a structuralist approach, which emphasises the interdependence of constitutional provisions, reveals a more integrated understanding. Economic and social rights, when interpreted as essential components of broader, enforceable rights, enhance the holistic realisation of justice, equality, and social welfare. For instance, the right to life and personal liberty cannot be fully realised without adequate access to healthcare, education, and shelter—socio-economic rights that are essential to human dignity.

Judicial structuralism encourages a reading of the constitution that aligns enforceable and non-enforceable rights, allowing courts to implement the broader aims set forth by the framers. By interpreting the constitution as an interconnected whole, judges can move beyond the confines of positivism, recognising economic and social rights as foundational to fulfilling the constitution's promises.

While internal aids provide a starting point, external aids also play a crucial role in interpreting socio-economic rights. It is a common interpretative rule that, where language is clear, external aids are unnecessary. However, this approach guided by the positivist school, can overlook broader contextual meanings and legislative intent, potentially missing nuances essential to fulfilling constitutional objectives. Incorporating external aids enriches judicial interpretation, enabling a fuller understanding of statutory objectives, even when the text appears to have a straightforward meaning.

For Bangladesh, these external aids include the historical milestones that shaped the nation's identity and constitution. The War for Liberation in 1971 represents the culmination of a series of significant events, including the Language Movement (1948-1952), the United Front's victory in the 1954 provincial election, the 21-point programme, the 11-point demands, and the Proclamation of Independence. Each of these historical elements captures the evolving aspirations of the people, particularly the commitment to economic and social equality. Post-liberation documents, speeches, and debates from the Constituent Assembly also provide essential context to understanding these rights and underscore the importance of upholding the constitution's socio-economic ideals.

Certain constitutional terms—such as "material and cultural standard of living," "reasonable wage," "reasonable rest, recreation and leisure," and "progressively remove the disparity in the standards of living between the urban and the rural areas"—invite judicial interpretation to define their practical scope. The judiciary, guided by these broader contextual frameworks, has the responsibility to ascertain the most suitable remedies, as these rights speak directly to the needs and aspirations of the people. By grounding judicial interpretations in the historical and constitutional legacy of Bangladesh, judges can justifiably use external aids to interpret these terms in ways that fulfill constitutional objectives.

The framers' intention to address socio-economic justice as a core constitutional goal can be advanced by reading these principles alongside the constitution's mandates for justiciable rights, such as those in Articles 102(2), 111, and 104. Through this combined approach, the judiciary can recognise socio-economic rights as not merely aspirational, but as enforceable components that are vital to achieving the constitution's vision.

To ensure that economic and social rights become part of Bangladesh's enforceable legal framework, it is essential to interpret Article 8(2) in relation with Articles 102(2), 111, and 104. Article 102(2), which empowers the High Court Division to issue writs, allows for indirect protection of economic and social rights when aligned with fundamental rights. Article 111, ensuring binding precedents, enables the judiciary to create lasting interpretations. Article 104 further provides the Supreme Court discretionary powers to do complete justice in any cause or matter pending before it, a mandate that can encompass economic and social concerns.

Together, these provisions support a judicial approach that is both responsive and innovative, one that actively integrates economic and social rights as part of the broader constitutional commitment to justice. The judiciary, by exercising these powers, can embody the constitution's original aims, aligning its interpretations with the ideals of democracy, equality, and social progress.

Today discussions around reforming, or rewriting the original Constitution of 1972 are more prominent than ever. Whatever direction future changes may take, one principle must remain unwavering: the prioritisation of economic and social rights. These rights form the core of our constitution's commitment to justice, equality, and dignity. By embracing both internal and external aids to interpretation, the judiciary has a crucial role in transforming these rights from aspirations into enforceable guarantees, ensuring they retain the prominence our founders envisioned. Through this interpretative approach, the judiciary can honour the constitution's legacy while advancing Bangladesh's foundational commitment to the welfare of all its citizens.

Snehadri Chakravarty is advocate at the Supreme Court of Bangladesh.​

 

[Saif]

Experts debate constitutional reforms, call for consensus

Legal and academic experts at a discussion on Monday underscored the need for a constituent assembly and a national consensus to amend the constitution, raising questions about the...

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Experts debate constitutional reforms, call for consensus
Staff Correspondent 04 November, 2024, 23:58

Legal and academic experts at a discussion on Monday underscored the need for a constituent assembly and a national consensus to amend the constitution, raising questions about the interim government’s mandate to make such changes.

The remarks came during a discussion organised by Bangladesh Ganatantrik Ainjibi Samiti, a platform of left-leaning lawyers, to mark November 4 as Constitution Day.

At the event eminent jurist Dr Kamal Hossain called for public discussions to assess and address any potential shortcomings in the constitution, suggesting that amendments might be necessary if gaps were identified.

Fellow jurist Shahdeen Malik, however, expressed scepticism regarding the feasibility of interim government-led constitutional reforms, cautioning that these efforts might face significant obstacles.

Dr Kamal said that public opinion must be cultivated through open discussions to address the issues, if any, needing correction.

Having urged that any move towards amendment should be grounded in widespread public consensus to reflect the people’s will, the eminent jurist stressed that with the support of a two-thirds majority of the people, the constitution could be amended to resolve identified shortcomings.

Shahdeen Malik criticised Bangladesh’s repeated shifts in governmental structure without addressing the core state issues.

‘Bangladesh is a country where the form of government has been altered repeatedly blaming the government structure for all the troubles, instead of addressing the root problems of the state,’ Shahdeen Malik stated.

While he advocated for a constituent assembly to draft or amend the constitution through broad national consensus, he also expressed doubt whether such consensus could be achieved at all.

Former Dhaka University history professor Syed Anwar Husain remarked that the interim government had the authority only to propose constitutional amendments.

But Supreme Court Bar Association president AM Mahbub Uddin Khokon said that the interim government held the mandate neither to amend the constitution nor to rewrite it since the students did not give it the mandate to reform the state.

Senior lawyer Subrata Chowdhury called on the interim government to designate April 10 as ‘Republic Day’ to honour the formation of Bangladesh’s first government on that date.

He criticised the interim government’s decision cancelling November 4 as Constitution Day, expressing concern over diminishing recognition of key historical milestones of Bangladesh.​

 

[Saif]

Why and how can a constitution be created?

The Students Against Discrimination, a movement that led the former prime minister Sheikh Hasina to flee the country, demanded a new constitution, repealing the...

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Why and how can a constitution be created?
by Abuzar Gifari 07 November, 2024, 00:00

The Students Against Discrimination, a movement that led the former prime minister Sheikh Hasina to flee the country, demanded a new constitution, repealing the existing one. On some legal grounds, I fully agree with this demand. Firstly, the legality of the interim government, formed following a successful mass uprising in July-August, may be questioned under the existing Constitution of Bangladesh. There is no provision for establishing an interim government in the constitution. So, the Supreme Court of Bangladesh, the guardian of the constitution, has scope to declare this government unconstitutional in the future following the 5th and 7th amendment cases. Secondly, the existing constitution can no longer be amended because of Articles 7A and 7B. Article 7B limits the parliament from amending two-thirds of articles of the constitution, including Articles 7A and 7B. These limitations are considered ‘constitutional handcuffs’. Further, Article 7A prescribes capital punishment for whoever abrogates, repeals, or suspends the constitution or its any provision by any unconstitutional means. Thirdly, the current constitution consists of many undemocratic and anti-people provisions, including floor-crossing, preventive detention, emergency provisions, unenforceable fundamental rights, etc. Last but not least, there is a constitutional vacuum at this moment in various sectors. For example, it’s unclear to whom the president will resign, how the next election will be organised, etc. Additionally, the constitution can only be amended by the parliament. But no parliament exists at this moment. Who will then amend the constitution? To fill such a different vacuum, ‘people’s will’ should be taken into consideration. Therefore, I think it is inevitable to draft a new constitution to validate the current government, to fill up the constitutional gap, and to keep the spirit of the July revolution intact.

A bundle of questions may arise. Such as, can the current government draft the constitution? How can a constituent assembly be made? How can the people’s will be included in the constitution? This write-up tries to find the answer to these questions from the global constitutional gene pool.

No doubt, most of the constitutions of the world are created by the constituent assembly. Such as the American Constitution, the French Constitution, the Bangladesh Constitution 1972, etc. Contrarily, some constitutions are made by a single political actor. These types of constitutions are usually created in authoritarian regimes or during periods of significant political upheaval. For example, the Constitution of the Soviet Union (1924). After the Russian Revolution, Vladimir Lenin and the Bolshevik Party created this constitution by a small group of leaders, reflecting the party’s ideology and goals, without substantial input from the general populace or other political factions. Furthermore, Kim Il-Sung and the Workers’ Party of Korea established the first constitution, the Constitution of the Democratic People’s Republic of Korea 1948, which reflected the leader’s ideology. Bangladesh is not now governed by any autocratic regime, so there is no option to create a constitution other than by the constituent assembly.

Jon Elster observed in his article ‘Forces and mechanisms in the constitution-making process’ (1995) that the constituent assembly has two kinds of constraints while making a constitution. Upstream and downstream constraints. Upstream constraints are imposed by the upstream actors, i.e., the creator of the constituent assembly. A constituent assembly is usually created by two means. On one side, there is the authority or person who decides to establish a constituent assembly. In 1787, this decision was made by the Continental Congress in the United States. In France, the King made the decision in 1789. In Germany in 1949, the Western occupying powers made the decision. On the other side, there’s the process for choosing the representatives for the assembly. In the US and Germany, the state legislatures picked the delegates. In Bangladesh, the constituent assembly was formed consisting of the elected representatives of the 1970 election, which falls under the second category. The people or groups that organise the assembly often try to set limits on how it works or what the constitution should include. For example, the Continental Congress told the Federal Convention to suggest changes to the Articles of Confederation, not to create a completely new constitution. On the other hand, downstream constraints occur when a proposed document must be approved by another group. The people drafting the document are limited by what they know about the preferences of that group. For example, in the US, since the constitution needed approval from the states, the drafters couldn’t disregard the states’ interests.

However, in his article ‘Importance of constitution making’ (2011), David Landau found the biggest risk in creating a constitution, that strong individuals or political parties can use either genuine or fake majorities to force their version of the constitution on everyone else in society. So, he urged constitutional theorists to construct a model that will obstruct the new authoritarian or semi-authoritarian regime that comes after a revolution. Since the interim government of Bangladesh or the next elected government will have a chance to become autocratic, the people’s will must be taken into account in an effective way, like a referendum.

As per the above practices and observations, it can be argued that the interim government can be given power to select delegates of the constituent assembly, and later such a constitution should be ratified by the elected representatives or by referendum. Therefore, the assembly must consider the interests of the ‘people’ without whose ratification the constitution will not come into effect.

Abuzar Gifari is a lawyer and research officer at the International Institute of Law and Diplomacy.​

 

[Saif]

What is constitutional reform, how this to be carried out?

The Constitution Reform Commission, formed on 6 October, will provide necessary recommendations for constitutional reforms after reviewing and evaluating the existing constitution, according to a gazette issued by the government. So the commission does not have the authority to draft a new...

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What is constitutional reform, how this to be carried out?
Ridwanul Haque
Updated: 06 Nov 2024, 16: 44

After the successful revolution of July-August, public gathering in the National Parliament. They are now facing a new Bangladesh on 5 August.Shuvra Kanti Das

The Constitution Reform Commission, formed on 6 October, will provide necessary recommendations for constitutional reforms after reviewing and evaluating the existing constitution, according to a gazette issued by the government. So the commission does not have the authority to draft a new constitution.

The process for constitutional reform – whether through a new constitution or amendments – has not been decided yet. However, one of the main coordinators of the Students Against Discrimination (SAD) has already presented a five-point demand for state reform. Their first demand is to abolish the 1972 constitution and draft a new one.

With a few exceptions, the power and authority to create a new constitution lies with the constituent assembly or a constitution council. The power to amend the constitution rests with parliament. The 1972 constitution chose the parliamentary democracy system as the method of governance for the state.

The people were recognised as the ultimate source of power. The four fundamental principles - democracy, socialism, Bengali nationalism, and secularism - were established as the constitutional identity. The constitution safeguards the fundamental human rights of citizens and grants the High Court the power to enforce these rights.

The journey of the constitution, which promised a bright future, faltered within two years. In January 1975, through the Fourth Amendment, a one-party BAKSAL system was established. A presidential system, characterised by strong authoritarian rule, was introduced overnight. Freedom of speech, press freedom, and citizens’ rights were suspended, and the judiciary became subordinate to the president.

Was this significant change or constitutional decline a result of the weaknesses of the 1972 constitution? I believe this change was made possible by certain constitutional and extra-constitutional factors.

First, then prime minister Sheikh Mujibur Rahman misused his charismatic leadership.

Second, parliament abused its power to amend the constitution due to its majority.

Third, article 142, which outlines the process for constitutional amendments, was flawed. In that system, there was no provision for a referendum or broad public consultation before amending the constitution’s fundamental principles.

Fourth, article 70, which imposes restrictions on voting against one's party, prevented the rise of opposition voices in parliament.

Fifth, there was no democracy within the ruling party, and the “one leader, one nation” mentality encouraged nepotism in governance.

Less than seven months after the four amendments, Sheikh Mujibur Rahman and his family were brutally assassinated on 15 August 1975. From then until 6 December 1990, military governments ruled the country. During this period, the state was governed by a presidential system.

Between 1975 and 1990, some hopeful reforms were made to the constitution and the constitutional system. Although democracy was absent and elections were controlled and manipulated by the governing party, key reforms included giving various political parties space to engage in politics, and the formation of the BNP and Jatiya Party, which led to political competition.

Another significant change was the alteration and revision of the four fundamental principles. Instead of Bengali nationalism, Bangladeshi nationalism was introduced, which made indigenous and non-Bengali communities feel more at ease. Although controversial, the recognition of Islam as the state religion, replacing secularism, satisfied Islamist parties. However, the ruling elite made these changes primarily to serve their political interests.

Another notable reform was the introduction of a referendum for amendments to the constitution, including those concerning the form of government and other key principles.

The political plurality that emerged during this time led to the popular anti-authoritarian movement, which forced president Ershad to resign in December 1990. This culminated in the establishment of a democratic government through free and fair elections under the leadership of the interim president Shahabuddin Ahmed in February 1991. The BNP formed the government, and the Awami League emerged as a strong opposition.

In a historic and unique moment in the country's politics, all political parties agreed to reinstate the parliamentary system of governance through the 12th Amendment. This amendment also retained the provision for a referendum on constitutional amendments, albeit with some modifications.

Unfortunately, despite the promising restoration of democracy in 1991, the BNP government, towards the end of its tenure, began to manipulate the electoral system in an effort to regain power. Eventually, due to the strong stance, struggle, and firm demands of the Awami League, the BNP established a caretaker government system through the 13th Amendment.

In the 1996 elections held under this caretaker system, the Awami League won and formed the government. After the end of that government’s term, another caretaker government oversaw the 2001 elections, in which the BNP returned to power.

The next election, originally scheduled for 2006, faced complications when the BNP increased the retirement age for Supreme Court judges through the 14th Amendment. Their intention was to appoint the most senior judge, justice KM Hasan, as head of the caretaker government. The Awami League opposed this, resulting in a new political crisis.

With indirect military intervention, a caretaker government was formed. This government, which stayed in power for two years instead of the constitutionally prescribed 90 days, held parliamentary elections in December 2008. In those elections, the Awami League won by a landslide and formed the government.

From the 1991, 2001, 2006, and 2008 elections, we observed that the BNP and the Awami League alternated in power, with neither party serving two consecutive terms. After the 2008 elections, the Awami League formed the government in January 2009. Over time, prime minister Sheikh Hasina began influencing and corrupting the democratic and constitutional institutions.

Ridwanul Haque

At one point, the Awami League with an evil design unilaterally abolished the caretaker system from the constitution in 2011. This was done under pressure from the courts, which had ruled against it, and with the backing of the then chief justice, who was reportedly involved in a self-serving conspiracy. In 2010, the Supreme Court’s Appellate Division declared the caretaker government system unconstitutional, with a 4-3 verdict.

Predictably, the BNP boycotted the 2014 elections, and the Awami League formed a government through a largely unopposed, one-sided election. No opposition parties were present in Parliament, and the Jatiya Party was coerced into participating, later joining the government as a partner.

The country essentially returned to a one-party system without changing the constitution. Over the past decade and a half, Sheikh Hasina became an authoritarian leader, consolidating power through patronage networks in the party, administration, police, and other state institutions. This led to massive corruption, especially in political, financial, and constitutional areas.

The elections of 2014, 2018, and 2024 were marred by fraud, looting, and manipulation, destroying the electoral system. In the 2018 elections, the BNP was left with only 6-7 seats. Opposition parties were silenced through repression, disappearances, and killings, while millions of crores of public money were siphoned off through corrupt business networks. Like any autocrat who becomes crazy to stay in power, the ruling party Awami League, the police and the administrative officials were indulged in unlimited corruption at all levels.

In such a context, the country saw the appointment of a former officer from the controversial S Alam Group as President, who had previously served as a commissioner in the Anti-Corruption Commission.

This system is inconsistent and contradictory. In practice, neither the prime minister nor the cabinet is accountable to parliament. Judicial power lies with the judiciary, and legislative power resides in parliament, so the executive power should not be concentrated in a single individual.

In a democratic system, the prime minister holds the highest position among the executive leaders. Our current constitution deviates from this principle. Moreover, there is no limit on how many terms a person can serve as the prime minister. During the adoption of the 1972 constitution, discussions had taken place on this matter, and senior members considered the parliamentary power to remove a prime minister through a no-confidence vote as a safeguard against authoritarianism.

However, it is well-known that in our political culture, parliament lacks the opportunity to become a powerful institution. Key reasons for this include article 70, lack of internal democracy within political parties, and clan-based party politics. Another major flaw is that the constitution did not establish binding rules for political parties.

Article 70's restrictions on MPs voting freely must be abolished to ensure political pluralism and empower parliament. Two key reforms are urgently needed to ensure executive accountability and parliament’s empowerment: 1) A limit on the number of terms a prime minister can serve, and 2) Reducing parliament's term from five to four years. Additionally, the independence of the judiciary should be ensured by democratising the appointment and removal of judges and embedding this process in the constitution.

There is an important and different issue concerning the current constitution's weakness, which needs addressing: Bengali nationalism. Bengali nationalism is an authoritarian concept and is contrary to inclusive democracy and constitutionalism. The 1972 constitution failed to recognize indigenous and non-Bengali communities and excluded them from the constitutional definition of the people. The armed struggles in the Chittagong Hill Tracts in the 1970s were a direct consequence of this constitutional exclusion.

Many argue that there was no balance of power between the president and prime minister. I disagree with this opinion. In a parliamentary system, there is no need for a balance of power between the president and the prime minister. The real issue is the lack of balance of power between the legislature, executive, and judiciary. Under the current constitution, the judiciary cannot exercise its power independently, and the appointment of judges is controlled by the government. Over the years, we have witnessed the government's influence over the appointment and removal of judges.

There is no doubt that certain inherent weaknesses in the constitution have helped the prime minister become increasingly authoritarian. However, a comparison between the past 15 years of the Awami League government and the post-1990 Awami League and BNP governments presents a different picture. Under the same constitution, the government of Sheikh Hasina from 1996 to 2001 was not authoritarian. After being democratically elected in 2009, it was only after a couple of years that Sheikh Hasina gradually steered Bangladesh towards authoritarianism. The flaws in the amendment process of the constitution, which were present in the original document, were first addressed during Zia's time and later through the 12th Amendment, based on political unity.

Certain provisions of the constitution, particularly the requirement for a referendum for amendments (Article 142), were initially established. However, the Awami League government ignored this and, through the 15th Amendment, illegally altered or abolished fundamental provisions of the constitution, most notably the abolition of the caretaker government system, which amounted to a form of constitutional deception.

It wasn't just the Awami League; the BNP had also amended the constitution to serve its own interests and to undermine its opponents. Therefore, the process of constitutional amendments should be critically examined.

The current demand for a new constitution does not provide any clarity on the method. I do not believe a new constitution can be created without forming a Constituent Assembly. My reasoning for this stance is that the force and rationale behind the revolution of July (2024) is different from the force and cause of the 1971 liberation war.

After the great Liberation War of 1971, Bangladesh adopted its constitution through a Constituent Assembly (not a parliament) formed through free and fair elections. The Proclamation of Independence issued by the Constituent Assembly before the constitution came into effect on 16 December 1972, served as the temporary constitution. That constitutional assembly was formed on the basis of election.

In the current political context, if we are to create a new constitution or amend the existing one for constitutional reforms, we must move towards a broader political consensus. Political parties are essential for constitutional politics and governance. They represent the 'constitutional people' or citizens and act as agents of the people. Political parties are the foundation of democracy, and they provide the means for the people's participation in state affairs.

Therefore, in the interest of sustainable constitutional reforms, all political parties must reach a minimal consensus on two key issues: First, what reforms do they want in the constitution? Second, what method should be followed for those reforms—whether to create a new constitution or amend the existing one?

The Students Against Discrimination could play a role in encouraging and bringing political parties together. If all parties unite, a constitutional council could be formed before the next elections to begin the process of reform.

After the July revolution, we, as a nation, have truly arrived at a unique constitutional moment. This revolution, a people's uprising, is distinct from other popular movements or uprisings in post-1971 Bangladesh. However, everyone involved must remember that any constitution will only work when all the forces within society, all stakeholders, and institutions accept and abide by it. This is why we must rely on political parties and other political-social forces, and ensure the democratisation of political parties. The people must take their rightful role as the ultimate holders of state power—not as servants or subordinates of political parties or the ruling authorities.

* Ridwanul Haque: Associate Dean at a higher education institution in Melbourne; former Professor at the Department of Law, University of Dhaka.

** This article has been rewritten in English by Rabiul Islam​